The Circuit Brief: Legal Update ? Personal Injuries ? Limitation Period ...

Kiernan -v- J. Brunkard Electrical Ltd & Anor
[2011] IEHC 448

This was a personal injury case in which a dispute arose as to whether proceedings had been issued within the time limited by the Statute of Limitations (taking into account the provisions of section 50 of the Personal Injuries Assessment Board Act, 2003).

In practice I have not found it uncommon to receive panicked telephone calls from solicitors worried that the limitation period is about to run out. This panic is usually induced by a misunderstanding of the provisions of section 50 of the 2003 Act.

Section 3(1) of the Statute of Limitations Amendment Act, 1991 as amended by section 7(A) of the Civil Liability and Courts Act, 2004 provides that an action for personal injuries caused by negligence shall not be brought after the expiration of two years from the date on which the cause of action accrued or the date of knowledge if later.

Section 50 of the Personal Injuries Assessment Board Act, 2003 provides that:-

?In reckoning any period of time for the purposes of any limitation period in relation to a relevant claim specified by the Statute of Limitations 1957 or the Statute of Limitations (Amendment) Act, 1991, the period beginning on the making of an Application under Section 11 in relation to the claim and ending six months from the date of issue of an Authorisation? shall be disregarded?.

If you can imagine a clock ticking from the date on which the cause of action accrued (or the date of knowledge if later), that clock is going to run for two years. Once an application is made to PIAB the clock stops, and only starts to run again after a period of six months has elapsed after an authorisation is issued. In effect this adds to the two year limitation period any period for which the application is in PIAB plus six months. This is not a simple principle to get your head around but it is worth figuring out once and for all.

What was interesting about the Kiernan case was the court?s decision in relation to the date the application had been made. The plaintiff?s solicitors faxed a PIAB application on the 27^th May 2009 and posted it on the same date. The fax on the 27^th May 2009 included a copy of the cheque which was being enclosed in the post. That cheque was not received by PIAB until the 29^th May 2009. PIAB deemed the 29^th May 2009 to be the date that the application was made for the purposes of section 50. The High Court disagreed and found that the 27^th May 2009 was the appropriate date.

The court held as follows:-

?Examining the ordinary meaning of ?making of an application? the essential components were in place after the fax had been successfully delivered on the 27^th May 2007 (sic). The Board had a copy application form and a copy of the medical report. The payment was not made but a copy of the cheque was in the Board?s possession and the cheque was sent by registered post on the 27^th May 2009 for the appropriate fee. The Court comes to the conclusion the appropriate date in respect of the making of a claim for the purposes of the Statute was the 27^th May 2009.?

Practitioners should accordingly note that, where there is any degree of urgency regarding the making of an application to PIAB, the act of faxing through the completed application together with a copy cheque should be sufficient to ensure the application is deemed complete on that date rather than on the later date when the Board actually receives the cheque.

Link to judgment on courts.ie

Source: http://thecircuitbrief.blogspot.com/2012/02/legal-update-personal-injuries.html

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